Hutchison v. MONTGOMERY WARD & CO.

Concurring Opinion by

Mr. Chief Justice Maxey:

I concur in the majority opinion. There is no substantial dispute about the fact that “perhaps a bushel of snow” fell from the defendant’s roof onto the plaintiff and injured her. Whether the snow which fell upon the plaintiff could be called “a mass.of snow and ice” is open to question for the word “mass” connotes the idea of considerable size and that word is usually not applied to a mere bushel of anything. However, the question is not how much snow fell on the plaintiff, but was her *132 injury due to the defendant’s negligence. Since negligence is want of care under the circumstances, what are the circumstances?

We can take judicial notice of the fact that in the latitude of Butler 1 heavy falls of snow are the usual incidents of winter. The record discloses that on December 24, 1945, there was in Butler a sixteen and a half inch snowfall and in 1944 a twenty-seven inch snowfall. Is it the duty of a possessor of a building in a latitude in which such heavy snows are experienced, to immediately clean the roof after every snow-fall? If snow falling from roofs frequently causes serious injury to persons nearby, the answer must be “yes”. If it is unusual for snow falling from roofs to injure anybody, the answer must be “no”. Individuals are not required to alter conditions which in the normal course of events injure nobody. If, for example, a man has in his yard, near the sidewalk, a large tree which is obviously in such a decayed condition that its fall is likely, it is his duty to remove that menace without delay. On the other hand, if he has a large sound tree whose limbs extend over the sidewalk, he does not have to remove these limbs lest by some rare chance they become detached and fall on some passer-by. In the first example, the tree owner is charged with knowledge that his tree has become a menace; and in the second example he has no reason to anticipate that the tree limbs are likely to fall.

All of us who reside in the northern half of Pennsylvania have frequently seen snow falling from roofs upon passers-by, and upon social and business invitees to homes. We have seen such falls cause momentary annoyance. But the individual who has ever seen or heard *133 of anyone being seriously injured by a fall of snow is rare indeed.

To clear snow from the roof on one’s house is a difficult and hazardous undertaking. Very few householders have either the ability or the agility to do it. If they attempted the feat they would probably bring disaster upon themselves by falling from the roof. Neither is it easy to secure help to remove snow from roofs. To clear all the roofs in any municipality from snow in a normal winter would require the help for weeks of an army of laborers and it would be difficult to secure them. Only young and skillful men are qualified for such work. When two years ago there was a very heavy fall of snow in New York City it required millions of dollars and thousands of laborers and much time to remove snow from the streets and sidewalks, without any attempt to remove it from the housetops.

No one has ever made a clearer statement of the law of negligence than Justice Holmes when, in Commonwealth v. Pierce, 138 Mass. 165, 179 , he said: . . if the thing is generally supposed to be universally harmless, and only a specialist would foresee that in a given case it would do damage, a person who did not foresee it, and who had no warning, would not be held liable for the harm. If men were held answerable for everything they did which was dangerous in fact, they would be held for all their acts from which harm in fact ensued. The use of the thing must be dangerous according to common experience, . . .”

This statement applies to this case. An accumulation of snow on one’s roof is “generally supposed to be harmless”. The depth of the snow at the time it fell on the plaintiff was only four inches. It was somewhat iced but that fact was not known to anybody until after it had fallen. Ordinarily four inches of snow upon a roof is not potential for harm and “only a specialist would fore *134 see” that it might cause harm. If a person looks out of the second or third story window of his home during the days following a heavy snowfall he is sure to see more than four or five inches of snow on the roofs of neighboring homes. It usually is left there until the sun melts it and it falls off as snow, water, ice or frozen snow.

According to common experience the chances of anyone’s being harmed by snow or particles of ice falling from a roof are negligible, and these chances are only incidents of residence in a rugged Avinter climate, just as the chance of being hit by a falling cocoanut is an incident of residence in a tropical climate. In winter climates social invitees, grocery boys, newsboys, postmen, milkmen, and servants pass points adjacent to homes where snow falling from the roofs would reach them, without apprehending they are in any place of danger, and that ordinarily they are not in a place of danger at such times is evidenced by the fact that no one has cited any Pennsylvania cases in which anyone has recovered damages for injuries done by falling snow.

In the cited case of Beebe v. Phila., 312 Pa. 214 , 167 A. 570 (1933) the accumulation of snow and ice which caused the injury was on a sideAvalk and not on the roof of the house. According to common experience snow and ice upon a sidewalk is a menace to pedestrians and our official reports are replete with cases in which pedestrians have recovered damages because of slipping on ice and snow on sidewalks.

In the cited case of Pope v. Reading Company, 304 Pa. 326, 334, 335 , 156 A. 106 , the thing which fell and caused the injury was a piece of cement from the top of a wall. There is a vast difference between falling cement and falling snow. We said in that case: “. . . pieces of concrete had been dropping from the coping of the wall for at least two weeks before the accident. Therefore, de *135 fendant was chargeable with knowledge of its dangerous condition and should have taken forethought of the injury it would likely inflict upon persons at its base. It was the duty of defendant to guard against the manifest and appreciable chances of human harm naturally arising from these conditions. ... A long-standing wall twenty-three feet in height cannot be regarded as something so completely free from lurking dangers as not to require inspection and care, particularly when it is subject to the frequent jarring of passing trains. It is a matter of common knoAvledge that Avails crumble and cause injuries. In the case before us, pieces of concrete had been dropping from the coping of the wall for at least two weeks before the accident.”

Appellant’s paper book cites the case of Klepper v. Seymour House Corporation, 146 N. Y. 85 , 158 N. E. 29 . That case is easily distinguished on its facts from the instant case. There “a mass of ice and snow” which fell upon the plaintiff weighed about 150 pounds. It fell from the roof of the Seymour House, which had attached to it a cornice which extended out over the street sixteen to twenty inches. It sloped at an angle of fifty degrees. As the court pointed out: “After heavy storms, snow and ice would accumulate on this slanting cornice and slide off onto the sidewalk in a mass of varying dimensions and Aveight. This had happened three or four times during the winter previous to the injury to the plaintiff. It had happened every winter. Members of the city government were familiar with the condition. The policeman reporting it to his superior was virtually told to mind his OAvn affairs. . . . The frequency with Avhich this thing had happened during all the winters since the defendant was the OAvner of the property was sufficient to charge it with notice of the condition.” If in the instant case it had been shown that in previous winters snow and ice had been allowed to accumulate on defendant’s building and slide off on the sidewalk in masses Aveighing 150 *136 pounds and that the matter had been brought to the defendant’s attention, plaintiff would have had a good case for recovery of damages, but she was not able to show such facts in support of her claim in the instant case.

In the cited case of Coman v. Alles, 198 Mass. 99 , 83 N. E. 1097 , the facts are wholly distinguishable from the facts in the instant case. There a person fell by slipping on the ice on or near the sidewalk. There was no injury from ice or snow falling from any roof.

The cited Section 364 of the Restatement of Torts refers to artificial conditions on land or property. Snow is not an “artificial condition” created by the landowner himself or by a third party.

Section 368 of the Restatement of Torts in describing conditions on one’s property imposes liability only when the condition involves an unreasonable risk to others. Certainly the presence of four inches of snow on a roof does not involve an unreasonable risk except to the man who would go up to remove it. The Comment in Section 368 states that: “A possessor of land is not required to fence or otherwise guard a dangerous excavation caused by a flood or freshet, even though it is immediately contiguous to a public highway.” If this is sound law certainly a possessor of a piece of real estate is not required to remove four inches of snow even if it lies on property contiguous to a highway. Snow on a roof is much less dangerous to pedestrians than is the excavation referred to in the above comment.

It would be unreasonable to place upon every possessor of a home or other building the burden of removing promptly from his roof each fall of snow as it occurs during a winter. A municipal ordinance requiring the possessors of homes or other buildings, situated on public streets, to remove falls of snow promptly from the roofs of their buildings would be a legal rarity. That cases of recovery for injuries caused by snow falling from roofs are almost unknown is evidenced by the fact that *137 only a negligible number of sucb eases are reported in the law books (apparently there are none in Pennsylvania) although perhaps one-half of the 48 American states are in zones where falls of snow in winter are commonplace.

Courts have never subscribed to the unjust and impracticable rule that the sustaining of mere injuries arising from some instrumentality within the control of another is proof of that other’s negligence (except in that limited number of cases where the doctrine of res ipsa loquitur can be invoked). This Court said in Hoag v. Lake Shore & Michigan Southern Railroad Co., 85 Pa. 293 : “There is a possibility of carrying an admittedly correct [legal] principle too far. It may be extended so as to reach the reductio ad absurdum, so far as it applies to the practical business of life. We think this difficulty may be avoided by adhering to the principle substantially recognized in The Railroad Company v. Kerr, [12 P. F. Smith 353] and The Railroad Company v. Hope [30 P. F. Smith 373], that in determining what is proximate cause [of injury], the true rule is, that the injury must be the natural and probable consequence of the negligence — such a consequence as, under the surrounding circumstances of the case, might and ought to have been foreseen by the wrongdoer as likely to flow from his act” (Italics supplied.)

President Judge Graff of the court below correctly enunciated the law of Pennsylvania when he said in his opinion: “The mere happening of an accident and injury does not prove negligence. The unexplained fall of an object from a building is not sufficient to render the owner thereof liable for negligence: Joyce v. Black, 226 Pa. 408 ; Hartman v. Miller, 143 Pa. Super. Ct. 143 . The burden of proof therefore rests upon the plaintiff in this case of establishing negligence upon the part of the defendant before there can be a recovery. The only evidence offered in this respect is the falling of the ice *138 and snow causing the accident; the sharp slope of the roof toward the street; and the extraordinary snowfall upon December twenty-fourth, five days previous to the time of the accident; together with the melting down of the sixteen and one-half inch snowfall until it was four inches on the date of the accident.”

In the Joyce v. Black case this Court held that in a suit against the owner of a building by a person injured by the fall of an ornamental bracket from the front of the building, the mere fact of the fall of the bracket does not raise the presumption of negligence and the rule res ipsa loquitur does not apply. Certainly if the fall of an ornamental bracket from the front of a building does not support a claim of negligence against the owner of the building, the common phenomenon of snow falling from the roof of a building in winter does not support any claim of negligence made against the occupier of the building. The Joyce v. Black case was cited and its controlling principle re-enunciated by Mr. Justice Horace Stern, speaking for this Court, in Doerr et al. v. Rand’s et al., 340 Pa. 183 , 16 A. 2d 377 .

I would affirm the judgment of the court below.

Butler is on a line drawn east and west parallel to the southern boundary of Pennsylvania, half way between that line and the straight line of the northern boundary (disregarding the small northwestern projection).